The appellant is the original plaintiff. His suit for specific performance was partly allowed by the trial court which held that the plaintiff was entitled to get Rs. 02,62,500/-with 6% interest. The plaintiff's prayer for specific performance was rejected. Aggrieved by the said part, he filed Regular Civil Appeal No.252 of 2006 which also came to be dismissed.

2. The appellant-plaintiff has therefore preferred this Second Appeal before this Court under Section 100 of the Code of Civil Procedure, 1908.

3. By instituting Special Civil Suit No. 27 of 1991 before the Court of Civil Judge (S.D.), Anand, the plaintiff contended that property being Final Plot No.677, Town Planning Scheme No.2, Anand, admeasuring 1789 Sq. Meters, belonging to deceased Chhaganbhai was agreed to be sold to the plaintiff by said Chhaganbhai and that there was an oral contract for that. Said Chhaganbhai was grandfather of defendant Nos.1 and 2 and was father-in-law of defendant No.3. The defendants are the heirs. Chhaganbhai died in the year 1985. It was the case of the plaintiff that he was staying at Dubai since long, that he had family relationship with said Chhaganbhai. When he happened to be in India, in the year 1993, Chhaganbhai agreed to sell to him 9 Gunthas of the suit land at the rate of Rs. 50,000/- per Guntha. It was stated that out of total consideration, $25,000 were to be paid to defendant No.1 in USA upto 15th October, 1985.

3.1 In respect of oral agreement claimed to have been entered into between the plaintiff and deceased Chhaganbhai, as per the case of the plaintiff, a writing was given by Chhaganbhai and the xerox copy was given to the plaintiff. The original thereof was with defendant No.1, pleaded the plaintiff. The plaintiff further stated that he paid $25,000, that is equivalent to Rs.02,62,500/-. It was pleaded that though the plaintiff was ready and willing to pay balance Rs.04,50,000/-, defendants were not ready and willing to perform the contract. Defendant No.1 filed his written statement at Exhibit 32, whereas defendant Nos.2 and 3 filed their written statement at Exhibit 40 and contested the suit.

3.2 Trial court framed issues at Exhibit 144. It concluded that an oral agreement was entered into regarding sale of the suit property and further held that plaintiff proved payment of Rs.02,62,500/-. The trial court refused to grant prayer 9(A) for specific performance and only directed return of the amount as above. The trial court found that the writing Mark 3/1 stated to have been given by Chhaganbhai in relation to oral contract was not acceptable in eye of law as secondary evidence. The court further recorded that as to which portion of the land was agreed to be sold was not clear and the contract was uncertain in terms of identity of the property agreed to be conveyed. On such main ground, relief of specific performance was refused. The first appellate court concurred with the findings of the trial court and further held that agreement lacked certainty and the parties were not ad exercised by the Court under Section 20 of the Specific Relief Act, 1963 has to be sound and judicious consideration.

4. Learned advocate Mr. Bhargav Karia for the appellant submitted that oral agreement was held proved and the plaintiff was ready and willing to perform his part of contract. He submitted that the case of the plaintiff in the plaint was specific that 9 Gunthas of land on the Northern side was agreed to be sold, and it was wrong to say that there was no identification of the land. Therefore according to his submission, Courts below ought to have exercised discretion in favour of the plaintiff by granting decree of specific performance. He placed reliance on decision in A.C. Arulappan Vs Smt. Ahalya Naik [AIR 2001 SC 2783] to submit that discretion which may be idem.

4.1. Another decision in Damcherla Anjaneyulu and another Vs Damcherla Venkata Seshaiah and another [AIR 1987 SC 1641] was relied on to submit that Court should invok